Social Justice

Kevin Lewis

November 19, 2021

The Personal Finances of United States Supreme Court Justices and Decision-making in Economic Litigation
Jordan Carr Peterson, Thora Giallouri & Elli Menounou
Journal of Legal Studies, June 2021, Pages 379-405

What explains probusiness judicial decision-making? Existing scholarship focuses on federal judges acting strategically or ideologically, but this represents only some factors affecting judicial behavior. Our objective is to develop a theory of judicial decision-making in economic litigation based on judges’ personal finances. We test this approach by considering how Supreme Court justices’ investments impact decision-making in cases involving businesses. While ethical standards suggest that judges should recuse themselves from cases whose outcomes affect them financially, research implies that judges make strategic choices regarding ethical conflicts. If judges participate in cases that implicate their personal finances, does this affect their votes? We marshal evidence from Supreme Court justices’ financial disclosures and argue that in business litigation, judges vote to promote the economic well-being of industries in which they invest. We find justices are more likely to decide for business litigants when personally invested in firms from industries affected by the litigation’s outcome. 

Reducing Prejudice Through Law: Evidence from Experimental Psychology
Roseanna Sommers & Sara Burke
University of Michigan Working Paper, June 2021

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is illegal cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (vs. illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely to face punishment for discriminatory behavior. It also leads people to report less prejudicial attitudes and greater feelings of interpersonal warmth toward members of that group. Conversely, when people learn that the law tolerates discrimination against a group, it licenses more prejudicial attitudes. Importantly, we demonstrate that individuals vary substantially in the degree to which they view courts as legitimate authorities, and that this orientation is systematically related to the degree to which prejudicial attitudes shift in response to legal rules. 

The Cost of the Culture Wars
Brady Earley
University of Chicago Working Paper, September 2021

The scrum of legal battles between religious liberty and sexual equality in the U.S. has presented many puzzling legal, political, and even moral questions to the nation’s attention. On top of these, cases seeking to resolve this ongoing controversy also present many empirical questions. Too often, however, these questions have gone overlooked and assumed away by both sides. This article presents one example of identifying and analyzing an empirical question in the Supreme Court’s most recent culture wars case: Fulton v. Philadelphia. Using a difference in differences method with synthetic control, the data analysis draws upon adoption rates in Massachusetts following the closure of Catholic Charities adoption services in 2007 after the passage of new nondiscrimination laws. In determining which policy (whether allowing Catholic Charities to continue or not) lies in the best interest of foster children, the data reveal that neither side should be so certain of its claims. Furthermore, this article underscores the importance of addressing rather than assuming empirical questions found in other culture war cases. In an area of the law riddled with contention such as this, looking to answer the empirical questions first may bring traction to these debates and reduce an unnecessary cost of the culture wars. 

Judicial involvement in plea-bargaining
Kelsey Henderson et al.
Psychology, Public Policy, and Law, forthcoming

The topic of judicial involvement in plea negotiations is a controversial issue, with potential benefits (e.g., ensuring that the process is fairer) and risks (e.g., inducing an innocent defendant to plead guilty). Currently, 20 jurisdictions explicitly prohibit judicial involvement in plea negotiations, whereas eight permit some type of involvement. We surveyed state court judges about judicial involvement in plea bargaining (colloquy and negotiations) and their perceptions on judicial participation. We expected judges in states that prohibit judicial involvement in negotiations to have a more negative view of judicial participation compared with judges in states that permit involvement or those in states that have no explicit laws permitting or prohibiting it. Our sample consisted of 233 state court judges, in states that permit, prohibit, or make no mention in their state policies regarding judicial involvement in plea negotiations. Our survey addressed components of standard involvement (judges’ expectations of the parties’ responsibilities and judges’ experiences with plea colloquies) and expanded involvement (judges’ experiences with and perceptions of participation in plea negotiations). Judges in permit states were more likely to endorse the benefits of increased judicial participation in plea negotiations compared with judges in no mention and prohibit states. Conversely, judges in prohibit states were more likely to acknowledge the existence of risks of increased judicial participation in plea negotiations compared with judges in no mention and permit states. These data suggest policies and procedures are not only associated with judges’ behavior in plea-bargaining but also their perceptions of this controversial practice. 

Understanding the role of race, gender and age in request to consent search drivers
Anthony Vito & George Higgins
Journal of Ethnicity in Criminal Justice, forthcoming

This study sought to understand the issue of racial profiling in police requests to consent search the driver. The social conditioning model was applied as a theoretical explanation of the officer based on the citizen’s race, gender, and age. The propensity score matching (PSM) results show that Black drivers (vs. White drivers), Black male drivers (vs. White Male drivers), and young Black male drivers (vs. young white Male drivers) are all more likely to have the officer request to consent search the driver. Similar results were found when considering the reason for the stop is a moving violation. Overall, the results show evidence of racial profiling for Black drivers, Black male drivers, and young Black male drivers. 

Racial bias and DUI enforcement: Comparing conviction rates with frequency of behavior
Rose Kagawa et al.
Criminology & Public Policy, forthcoming

This study estimates disparities in driving under the influence (DUI) convictions relative to the frequency with which racial/ethnic groups engage in alcohol-impaired driving. We use had-been-drinking crashes and self-reported alcohol-impaired driving to approximate alcohol-impaired driving frequency for racial/ethnic groups in California from 2001 to 2016. DUI conviction and had-been-drinking crash data are from a sample of 72,368 California men aged 21–49 in 2001. Self-reported alcohol-impaired driving rates are from male Californians who responded to the Behavioral Risk Factor Surveillance System. Relative to race/ethnicity-specific estimated rates of engaging in alcohol-impaired driving, Latino/Hispanic men had higher rates of DUI conviction than White men. This suggests racial bias plays a role in DUI convictions, with White men experiencing a lower probability of conviction than Latino/Hispanic men who engage in similar behavior. 

Judicial Accountability and Racial Disparity in Criminal Appeals
Anna Harvey & Sidak Yntiso
Journal of Legal Studies, June 2021, Pages 261-302

Existing research indicates that retention through election induces larger effects on judicial votes in criminal cases than retention through appointment. Yet such research has addressed neither case selection effects across retention institutions nor heterogeneous treatment effects by defendants’ and judges’ race. Leveraging the unique retention institutions governing New York State’s intermediate appellate judges, we report the first within-justice estimates of the effects of reelection and reappointment incentives on judicial votes in criminal appeals. We find that impending judicial reappointment induces a 49–52 percent within-justice decrease in prodefendant votes in appeals involving Black defendants heard by all-white panels but does not affect votes in other cases. We find no additional effects of impending reelection on appellate justices’ votes in criminal appeals. Our findings suggest the need for greater attention devoted both to potential selection effects and to heterogeneous effects by defendants’ and judges’ race in studies of judicial retention institutions. 

The effect of evidence order on jurors' verdicts: Primacy and recency effects with strongly and weakly probative evidence
Kimberly Schweitzer & Narina Nuñez
Applied Cognitive Psychology, November/December 2021, Pages 1510-1522 

In a series of studies, the effect of evidence order with strongly and weakly probative evidence was examined. In studies 1a, 1b, and 2, participants read a homicide trial containing four pieces of evidence (two strongly probative, two weakly) presented in differing orders and reported their verdicts. In Study 1a and 1b, fingerprint evidence and a video confession were strongly probative, while DNA evidence and eyewitness testimony were not. In Study 2, DNA and video confession evidence were strongly probative, but fingerprint evidence and eyewitness testimony were not. Across studies, results indicated recency effects when the last piece of evidence was strongly probative, with more guilty verdicts compared to when the last piece of evidence was weakly probative. Study 3 utilized a different trial scenario and six pieces of evidence to further test for a primacy effect. Results again indicated support for a recency effect, with no primacy effects found. 

Pretrial justice reform and black–white difference in employment
Jung Kim & Yumi Koh
Applied Economics, forthcoming

While criminal justice reforms aimed at reducing the size of pretrial detainee population are being implemented across the U.S., little is known about their impact on the lbour market. Using difference-in-differences approach, we find that the 2017 New Jersey Criminal Justice Reform increased the employment probability among blacks in their prime working age (i.e. 25–54) by 4.2 to 6.8 percentage points; its effect among whites is negligible. Labour force participation, full-time job status, and working hours among blacks also increased. Our findings suggest that individuals not detained pretrial are absorbed by the formal labour market and that this contributes to an overall increase in employment. 

Do Courts Matter for Firm Value? Evidence from the US Court System
Stefano Colonnello & Christoph Herpfer
Journal of Law and Economics, May 2021, Pages 403–438

We estimate how US state courts impact firm value by exploiting a US Supreme Court ruling that exogenously changed firms’ exposure to different courts. We find that increased exposure to more business-friendly courts is associated with positive announcement returns. We find no such association for objective court quality. Consistent with the ruling impacting firm value through the legal environment channel, we find that effects are stronger for firms with high litigation exposure. We find that the ruling led to a shift in both the geographic distribution of lawsuits and operations of firms. 

Measuring Judicial Sentiment: Methods and Application to US Circuit Courts
Elliott Ash, Daniel Chen & Sergio Galletta
Economica, forthcoming

This paper provides a general method for analysing the sentiments expressed in the language of judicial rulings. We apply natural language processing tools to the text of US appellate court opinions to extrapolate judges’ sentiments (positive/good vs. negative/bad) towards a number of target social groups. We explore descriptively how these sentiments vary over time and across types of judges. In addition, we provide a method for using random assignment of judges in an instrumental variables framework to estimate causal effects of judges’ sentiments. In an empirical application, we show that more positive sentiment influences future judges by increasing the likelihood of reversal but also increasing the number of forward citations. 

An Empirical Investigation of Diversity in U.S. Arbitration
Andrea Chandrasekher
University of California Working Paper, October 2021

For decades, the United States system of arbitration has been subject to nearly constant public criticism. Calling arbitration a rigged judicial system, consumer and employee rights groups have voiced opposition to the practice of "forced arbitration" whereby millions of Americans are contractually required to settle disputes in arbitration rather than in litigation. Just when it seemed that things couldn't possibly get any more controversial, arbitration is in the hot seat again, this time over the lack of diversity amongst U.S. arbitrators. In the wake of a national racial reckoning and high profile cases that have called attention to the issue, arbitration has been called the place "where white men rule." Despite this national attention, the number of rigorous empirical studies investigating diversity in arbitration is limited. Because much of the diversity conversation has been based on anecdotal information and survey data which doesn't cover the full population of U.S. arbitrators, basic facts about the demographic profile of U.S. arbitrators are still unknown: What percent of arbitrators are diverse (i.e.—Black, Hispanic, Asian, or female)? Are diverse arbitrators under-selected for arbitration cases compared to their white male counterparts? Most importantly, to what extent do the race and gender of the arbitrator impact the outcome of the arbitration? This paper contributes to the literature by using an originally-collected data set of arbitrator race, ethnicity and gender from the two largest arbitration firms in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the American Arbitration Association (“AAA”). The data were collected using public data sources and cutting-edge machine learning techniques. This is the first-ever empirical effort to estimate the race and ethnicity of arbitrators for both the JAMS and AAA populations. The analysis presents estimates of the demographic profile of the supply of U.S. arbitrators, the demographic profile of the subset of arbitrators that are actually selected to arbitrate, as well as regression analyses examining the relationship between arbitrator diversity and arbitration outcomes. The study has four main findings. First, women and people of color are underrepresented amongst U.S. arbitrators, both relative to the U.S. population and relative to the population of American lawyers and judges. The extent of the underrepresentation for both groups is significant, though it is more severe for arbitrators of color than for female arbitrators. Second, the rate at which arbitrators of color and women are selected to arbitrate is generally proportional to their (very low) representation in arbitration organizations. Third, with respect to arbitration outcomes, there is no statistically significant relationship between an arbitrator's race/ethnicity and how they decide cases. However, the reason for this non-finding is that the study is statistically under-powered. In other words, with less than 4% of arbitrators being Black, Asian, or Hispanic, there are simply not enough arbitrators of color to even conclusively study the relationship between racial / ethnic diversity and arbitration outcomes. This, in and of itself, is a powerful statement about the lack of diversity in US arbitration. Fourth, as has been found in some previous studies, the evidence suggests that female arbitrators are less likely than their male counterparts to rule in favor of plaintiffs. The likely reason for this is differential case selection; female arbitrators disproportionately decide cases that are harder for plaintiffs to win. This gender effect exists in both JAMS and AAA arbitrations, though the results vary from statistically significant in some models (p<0.05) to weakly statistically significant in others (p<0.10).


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